the same persons may constitute different Co. v. Rude Bros. Mfg. Co., 60 Kan. 145, 150, identities of themselves, so that, as directors 55 Pac. $48. "Officers of a corporation, who of a corporation, they may convey, or mort are also its creditors, cannot lawfully pay gage, or contract with themselves as private their own claims in preference to other credpersons. The relation of debtor and creditor itors when the corporation is insolvent." implies antagonism, a countervailing interest Headnote 2, Clark Co. y. Colton (1900) 91 of distinct and independent parties. The in Md. 195, 46 Atl. 386, 49 L. R. A. 698. "The terests of self-preferring creditors are co-op directors of an insolvent corporation, being erative and the same. The more anxious as its creditors, cannot take advantage of their a creditor to obtain the preference, the more fiduciary relation, and deal directly with willing and ready as a debtor to grant it. themselves, to the injury of others in equal This puts the director in a situation wholly right. If they do, equity will set aside the incompatible with his duty to serve all stock | transaction at the suit of creditors of the holders and creditors fairly and alike. While corporation or their representatives, without not a trustee in a technical sense, there can reference to the question of any actual fraudbe no doubt that he occupies such a fiduciary ulent intent on the part of the directors; for position towards the stockholders and direct. | the right of the creditors does not depend ors as calls for a faithful performance of upon fraud in fact, but upon the violation of duty, and conduct entirely free from any use the fiduciary relation of the directors." Tayof his position to advance his personal inter lor v. Fanning (Minn., July 3, 1902) 91 N. W. ests beyond those of others of equal merit. 269. “At common law a debtor may prefer We have many American decisions in sup a creditor to the exclusion of others, but a port of this view, from the more recent of different rule prevails when the creditor is a which in the several states, though often not director of an insolvent corporation debtor. the best considered, I briefly quote: "It | The directors in such case are not strictly seems to be well settled that directors of an trustees for the general creditors, though insolvent corporation, who are creditors of sometimes so called, but they owe them a the company, cannot secure to themselves duty which is inconsistent with the taking any preference or advantage over other cred of a security for prior indebtedness to their itors in the payment of their claims." Bon detriment." Symonds V. Lewis (1901) 94 ney V. Tilley, 109 Cal. 346, 42 Pac. 439, Me. 501, 48 Atl. 121. "The corporation was quoted approvingly in Bank v. Ivett, 127 Cal. plainly insolvent, not a going concern, nor 134, 59 Pac. 393, decided December 11, 1899. one with any prospect of going on at any "It is not good morals, or good law." Fishel time in the future. It could not, in such conv. Goddard (Colo. Sup. July 5, 1902) 69 Pac. dition, prefer its directors, secretary, and 607, 612. “We think it very clear, therefore, treasurer." King v. Wooldridge (Oct. 29, that when the validity of these mortgages, 1900) 78 Miss. 179, 28 South. 824. "The propto secure debts upon which the directors were osition that an insolvent corporation cannot indorsers, was questioned by other creditors prefer a debt on which its officers and directof the corporation, they should have been ors are bound as trustees is now thoroughly classed as instruments rendered void by the established in this state.” Williams v. Turlegal principle which prevents directors of an ner (Neb., Jan. 8, 1902) 88 N. W. 668. "The insolvent corporation from giving themselves law will not allow the stockholders and offia preference over outside creditors.” Atlas cers of a corporation to take advantage of Tack Co. v. Exchange Bank (Aug. 7, 1900) their knowledge of the insolvent condition 111 Ga. 703, 710, 36 S. E. 939. "The law is, of the concern, and their power to use and however, that an insolvent corporation can control the assets to repay their own debts, not prefer a creditor who at the time is a or to relieve them from special liabilities to director therein." Rockford Wholesale Gro the injury of other creditors." Graham v. cery Co. v. Standard Grocery & Meat Co. Carr (May 6, 1902) 130 N. C. 271, 41 S. E. (Oct. 24, 1898) 175 Ill. 89, 51 N. E. 642, 67 379. "The law applicable to these cases is Am. St. Rep. 205. "In Hays y. Bank, 51 extremely clear. While directors of corporaKan. 535, 33 Pac. 318, it was held that the tions are not trustees in a technical sense, directors and managers of a corporation, who there is yet no doubt that they occupy a fiduwere creditors of the same, could not prefer ciary position towards stockholders and credthemselves, leaving the question undecided itors of the corporation, and that they come as to whether other creditors might be pre within the designation of persons filling a ferred. The ground of that decision is that fiduciary relationship. In fact, they hold a the directors are agents of the stockholders position of the highest trust, and will, thereand creditors, and that their interests as cred fore, be required to execute it with the utors would be inimical to their duties as most fidelity. This being so, it is plain that agents. They occupy a fiduciary relation to the defendants could not use their official the creditors and stockholders, and may not position to advance their individual interests. take advantage of their superior information But this is precisely what they did with and opportunity to gain an advantage over actual knowledge that the corporation was those whose interests they are guarding; nor insolvent.” Smith v. Putnam (1882) 61 N. are they permitted to contract with them H. 632. “The receiver of an insolvent corposelves as they may with third parties.” Plow ration may recover its assets, withdrawn,

after it has become insolvent, in order to tinue, and paid out $30,000 on its obligations,
secure some of its directors against a liability other than those secured, in the usual course
incurred for the corporation. A preference of business; and it was also at the time be-
of that character cannot stand, although at lieved by all parties to be solvent, and was
the time it is given there is no statutory pro- in fact solvent, if the assets were worth as
hibition against it.” Headnote, Taylor v. much as they cost. The trend of the de-
Gray (Nov. 22, 1899) 59 N. J. Eq. 621, 44 Atl. cision is indicated by the following sentence:
668. "It is the settled law of this common "It is often said that directors may not take
wealth that an insolvent debtor, whether advantage of their position and power to se-
corporation or individual, may prefer bona cure personal advantage to themselves, but
fide creditors. But if the creditor benefited that proposition has no application here, for
be a director, or other officer possessed of cor- the corporation itself directed the mortgage.”
porate power and corporate knowledge of the Page 317, 157 U. S., and page 623, 15 Sup.
insolvency of his corporation, then he has an Ct., 39 L. Ed. 713. To the same effect, see,
advantage over other creditors whose claims also, the following text-writers: 2 Cook,
may be of equal merit. He has knowledge Corp. $ 692; Elliott, Corp. $ 189; Field, Corp.
that his debt is in peril, and has the power $ 174; Reese, Ultra Vires, $ 155; 2 Spell.
to prefer himself. As he is, in a sense, Priv. Corp. $ 713; Tayl. Priv. Corp. § 759;
trustee for all the stockholders and creditors, 5 Thomp. Corp. $ 6503; 7 Thomp. Corp. $
equity forbids that he should act solely for 8496; Mor. Priv. Corp. & 787; 3 Clark & M.
himself, regardless of the interests of those Priv. Corp. p. 2414. Arkansas, Ohio, Mas-
for whom he is trustee.” Mueller v. Clay sachusetts, New York, and a number of other
Co. (1898) 183 Pa. 450, 458, 38 Atl. 1009. states have statutes restricting the right of
"The directors of an insolvent corporation insolvents to prefer any creditor. Tennessee,
are, by virtue of their position, debarred Texas, Washington, South Dakota, and per-
from preferring debts of the corporation due haps some other states, seem to adhere to the
to themselves." Olney v. Land Co. (Aug. 10, trust-fund doctrine. It has always been the
1889) 16 R. I. 597, 18 Atl. 181, 5 L. R. A. rule that the holder of a secret equity shall
361, 27 Am. St. Rep. 767. “When a corpora. not assert it to the injury of one who has
tion is insolvent, and has ceased to be a go- been innocently misled thereby, and in what
ing concern, and its officers know or ought to way is the principle different when the di-
know that the suspension is impending, then recting agents of an insolvent corporation,
such officers are so far trustees that they may with that full knowledge of the financial con-
not transfer corporate property to themselves dition of the concern the law requires them
in payment of debts due them, and that such to have, continue to conduct the business,
a transaction constitutes a fraud in law." | keep the public records fair, invite public
Slack v. Bank (April 25, 1899) 103 Wis. 57, confidence, solicit the people to deal with
64, 79 N. W. 51, 74 Am. St. Rep. 841. Of. them, and thus go on under cover, speculat-
same import, see Burnham, Hanna, Mungering on the capital fund of the association.
& Co. v. McCormick (Oct. 22, 1898) 18 Utah, until it has been wasted to a point that will
42,55 Pac. 77. To the same effect, see Harding only secure their personal liabilities, and
v. Hart (Jan. 7, 1902) 51 C. C. A. 264, 113 then, under claim of acting for the corpora-
Fed. 304, 312; Kittel v. Railroad Co. (C. C., tion, deliver to themselves, as creditors, all
Feb. 22, 1897) 78 Fed. 855; Northwestern that is left of the assets? I am mistaken if
Mut. Life Ins. Co. y. Cotton Exchange Real the deception of the one is not as culpable
Estate Co. (C. C., Oct. 21, 1895) 70 Fed. 155; as the other, and if the conduct of the latter
Bosworth v. Bank (Nov. 27, 1894) 12 C. C. A. does not violate the principles of common
331, 64 Fed. 615; Manufacturing Co. v. honesty.
Hutchinson (Oct. 1, 1894) 11 C. C. A. 320, 63
Fed. 496; Consolidated Tank Line Co. v.
Kansas City Varnish Co. (C. C., Sept. 5, 1890)
43 Fed. 204.

MEMORANDUM DECISIONS.
It is not clear how Sanford Fork & Tool
Co. v. Howe, Brown & Co., 157 U. S. 312,
15 Sup. Ct. 621, 39 L. Ed. 713, lends any
support to the proposition that directors, or

ADAMS et al., Respondents, v. ELWOOD,

Appellant. (Court of Appeals of New York, a majority of the board of directors, may Oct. 14, 1902.) Motion to dismiss an appeal prefer themselves by appropriating all the from a judgment of the appellate division of corporate assets on pre-existing liabilities,

the supreme court in the Second judicial deafter they have determined that the corpora

partment, entered June 4, 1902 (72 App. Div.

632, 76 N. Y. Supp. 1008), affirming a judgtion is hopelessly insolvent, and will in a ment in favor of plaintiffs entered upon the few days abandon its corporate business. In report of a referee. The motion was made that case Justice Brewer rests the court's upon the grounds that the appellate division

had unanimously decided that the findings of ruling upon the fact that the stockholders ex

fact were warranted by the evidence, and that pressly, by vote, authorized the mortgage, there were no other questions of law to be and that at the time it was executed the cor

reviewed; also, that the appellaut had failed poration was a going concern, and intended

to file a proper undertaking. R. J. Shadbolt,

for the motion. William L. Mathot, opposed. to continue in business, and in fact did con- | No opinion, Motion denied, with $10 costs.

pellants. Harold Nathan and Edgar M. Lev-
ALBANY EXCH. SAV. BANK V. BRASS entritt, for respondent.
et al. (Court of Appeals of New York. June PER CURIAM. Judgment (62 App. Div.
27, 1902.) Edwin Countryman, P. E. Du Bois, 617, 71 N. Y. Supp. 1132) affirmed, with costs,
and R. W. Brass, for appellants. William L. on authority of Howard v. Ludwig, 171 N. Y.
Learned and A. V. De Witt, for respondent. 507, 64 N E. 172.

PER CURIAM. Judgment (59 App. Div. PARKER, C. J., and GRAY, O'BRIEN,
370, 69 N. Y. Supp. 391) affirmed, with costs. BARTLETT, HAIGHT, MARTIN, and

PARKER, C. J., and GRAY, O'BRIEN, VANN, JJ., concur.
BARTLETT, MARTIN, VANN, and CUL-
LEN, JJ., concur.

BINZEN, Respondent, v. EPSTEIN et al.,
Appellants. (Court of Appeals of New York.

Oct. 7. 1902.) H. H. Snedeker, for appel-
AMBERG et al., Appellants, v. MANHAT- lants." Charles F. Brown and Frank Schaef-
TAN LIFE INS. CO. OF NEW YORK, Re-

fler, for respondent.
spondent. (Court of Appeals of New York.

PER CURIAM. Judgment (58 App. Div.
June 17, 1902.) No opinion. Motion for rear-

304, 69 N. Y. Supp. 789) affirmed, with costs.
gument denied, without costs. See 171 N. Y.
314, 63 N. E. 1111,

PARKER, C. J., and O'BRIEN, BART-
LETT, MARTIN,' VANN, CULLEN, and

WERNER, JJ., concur.
ARENTS v. LONG ISLAND R. CO.
(Court of Appeals of New York. May 29,

In re BLACKSTONE'S ESTATE. (Court
1902.) Motion to dismiss an appeal from an
order of the appellate division of the supreme

of Appeals of New York. June 24, 1902.)

Edward W. Sheldon, for appellant. Julius
court in the Second judicial department, en-

Offenbach and Thomas Penney, for respond-
tered January 31, 1899 (36 App. Div. 379, 55

ents.
N. Y. Supp. 401), which reversed an order of
special term deuying defendant's motion to set

PER CURIAM. Order (69 App. Div, 127,
aside several judgments entered in the action

74 N. Y. Supp. 508) affirmed, with costs, on
in favor of plaintiff's attorney. The motion

the_ground that this case is controlled by In
was made upon the ground that the appel-

re Houdayer's Estate, 150 N. Y. 37, 44 N. E.
lant had died since taking the appeal and that

718, 34 L. R. A. 235, 55 Am. St. Rep. 612.
no steps had been taken toward substituting

Motions to dismiss appeal and to correct rec-
auy one in his place. William J. Kelly, for

ord denied, without costs.
the motion. No opinion. Motion granted, and

PARKER, C. J., and GRAY. HAIGHT,
appeal dismissed, with costs and $10 costs of VANN, CULLEN, and WERNER, JJ., con
motion.

cur. O'BRIEN, J., dissents.

In re ARKENBURGH et al. (Court of

BLOOMINGTON MIN. CO., Respondent, v.
Appeals of New York. June 27, 1902.) BROOKLYN HYGIENIC ICE CO., Appel-
Charles Edward Souther, for appellants. Johú

lant. (Court of Appeals of New York. June
F. McFarlane. Arthur S. Tompkins, and Rob-

10, 1902.) L. Laflin Kellogg and Alfred C.
ert F. Little, for respondents.

Petté, for appellaut. Franklin D. Peale, for

respondent.
PER CURIAM. Order (69 App. Div. 618,

PER QURIAM. Judgment (58 App. Div.
74 N. Y. Supp. 1014) affirmed, with costs.

66, 68 N. Y. Supp. 699) afirmed, with costs.
PARKER, C. J., and GRAY, O'BRIEN, PARKER, C. J., and GRAY, HAIGHT,
HAIGHT, VANN, CULLEN, and WERNER, MARTIN, VANN, CULLEN, and WERNER,
JJ., concur.

JJ., concur.

same.

In re BAKER. (Court of Appeals of New
York. Oct. 21, 1902.) C. H. Sturges, for ap-

BOYLE & EVERTS CO., Respondent, v.
pellant. James C. Rogers, for respondents.

FOX et al., Appellants. (Court of Appeals of
PER CURIAM. Order (72 App. Div. 211, miss an appeal from a judgment of the appel-

New York. Oct. 14, 1902.) Motion to dis-
76 N. Y. Supp. 61) affirmed, with costs to the

late division of the supreme court in the First
respondents payable out of the estate.

judicial department, entered June 2, 1902 (72
PARKER, C. J., and O'BRIEN, BART; | App. Div. 617, 76 N. Y. Supp. 102), affirming
LETT, HAIGHT, VANN, CULLEN, and a judgment in favor of plaintiffs entered upon
WERNER, JJ., concur.

a decision of the court on trial at special term.
The motion was made upon the ground that

there was no question of law involved in the
BALDWIN, Respondent, v. ABRAHAM et appeal, and that the court of appeals had,
al., Appellants. (Court of Appeals of New

therefore, no jurisdiction to entertain the
York. June 17, 1902.) William J. Carr, Ed-

Milton Mayer, for the motion. Jo-
ward M. Grout, and Paul Grout, for appel-seph A. Farley, opposed. No opinion. Motion
lants. James C. Cropsey, for respondent. granted, and appeal dismissed, with costs and

PER CURIAM. Judgment (57 App. Div. $10 costs of motion.
67, 67 N. Y. Supp. 1079) affirmed, with costs,
on authority of Howard 'v. Ludwig, 171 N. Y.

BREED et al., Appellants, V. RUOFF et
507, 64 N. D. 172.

al., Respondents. (Court of Appeals of New
PARKER, C. J., and GRAY, O'BRIEN, York. June 27, 1902.) G. D. B. Hasbrouck
BARTLETT, HAIGHT, MARTIN, and

and | and Russel S. Johnson, for appellants. Thad-
VANN, JJ., concur.

deus D. Kenneson, for respondents.

PER CURIAM. Appeal dismissed, with

costs. See 69 App. Div. 620, 75 N. Y. Supp.
BATES, Respondent, v. LUDWIG et al., 1122.
Appellants. (Court of Appeals of New York PARKER, C. J., and GRAY, O'BRIEN,
June 17, 1902.) Louis Marshall, Samuel H. HAIGHT, VANN, CULLEN, and WERNER,
Guggenheimer, and William Strauss, for ap- | JJ., concur.

opinion delivered on previous appeal. 162 N. Y.
BREWER, Respondent, v. GILMORE, Ap. 163, 56 N. E. 521, 48 L. R. A. 107.
pellant. (Court of Appeals of New York.

PARKER, C. J., and GRAY, HAIGHT,
Oct. 7, 1902.) John A. Delehanty, for appel- MARTIN, VANN, CULLEN. and WERNER.
lant. Robert Averill, for respondent.

JJ., concur.
PER CURIAM. Judgment (57 App. Div.
637, 68 N. Y. Supp. 1134) affirmed, with costs.

PARKER, C. J., and O'BRIEN, BART In re BULLIS. (Court of Appeals of New
LETT, MARTIN,' VANN, CULLEN, and

York. June 27, 1902.) Adelbert Moot and
WERNER, JJ., concur.

Charles S. Cary, for appellant. C. Walter
Artz, Frederic W. Frost, and Frank Sullivan

Smith, for respondent.
BROWN, Respondent, ,, . METROPOLI- N. Y. Supp. 1047) affirmed, with costs.

PER CURIAM. Order (68 App. Div. 508, 73
TAN ST. RY. CO., Appellant. (Court of Ap-
peals of New York. June 27, 1902.) Charles GRAY, O'BRIEN, HAIGHT, VANN, CUL-
. Brown, Frank A. Irish, and Henry A. Rob- |-LEN,

and WERNER, JJ., concur. PARKER,
inson, for appellant. Gormly J. Sproull and C. J., not voting.
Thomas Sproull, for respondent.
PER CURIAM. Judgment (60 App. Div.

CASSIDY, Respondent, v. UHLMANN, Ap-
184, 70 N. Y. Supp. 40) affirmed, with costs.

pellant, et al. (Court of Appeals of New York.
PARKER, C. J., and GRAY, O'BRIEN, May 27, 1902.) No opinion. Motion for re-
BARTLETT, MARTIN, VANN, and CUL argument denied, with $10 costs. See 170 N. Y.
LEN, JJ., concur.

505, 63 N. E. 554.

In re BRUSH. (Court of Appeals of New

OITY OF ROCHESTER, Respondent, V.
York. June 27, 1902.) Roger M. Sherman,

ROCHESTER BILL POSTING CO., Appel-
for appellant. William N. Dykman, William

lant.

(Court of Appeals of New York. Oct.
A. Ferguson and Charles W. Sinnott, for re-

14, 1902.) Motion to dismiss an appeal from a
spondent.

judgment of the appellate division of the su-
PER CURIAM. Order (72 App. Div. 630,

preme court in the Fourth judicial department,

made at the March term, 1902 (70 App. Div.
76 N. Y. Supp. 597) affirmed with costs.

623, 75 N. Y. Supp. 1122), affirming a judg-
PARKER, C. J., and GRAY, O'BRIEN, ment in favor of plaintiff entered upon a deci-
HAIGHT, VANN, CULLEN, and WERNER,sion of the court at special term. The motion
JJ., concur.

was made upon the ground that the return on
appeal had not been filed. William A. Suther-

land, for the motion. No opinion. Motion
In re BRUSH. (Court of Appeals of New granted, and appeal dismissed, with costs and
York. June 27, 1902.) Roger M. Sherman, $10 costs of motion.
for appellant. William N. Dykman, William
A. Ferguson, and Charles W. Sinuott, for re-

CITY TRUST, SAFE DEPOSIT & SURE
spondent.
PER CURIAM. Order (72 App. Div. 630, FIDELITY & CASUALTY CO. OF NEW

TY CO. OF PHILADELPHIA, Respondent, v.
76 N. Y. Supp. 1010) affirmed, with costs.

YORK, Appellant. (Court of Appeals of New
PARKER, C. J., and GRAY, O'BRIEN, | York. June 10, 1902.) Charles C. Nadal, for
HAIGHT, VANN, CULLEN, and WERNER, appellant. William S. Ray and Frederick J.
JJ., concur.

Swift, for respondent.

PER CURIAM. Judgment (58 App. Div. 18,

68 N. Y. Supp. 601) affirmed, with costs.
In re BRUSH. (Court of Appeals of New PARKER, C. J., and BARTLETT, HAIGHT,
York." June 27, 1902.) William

N. Dykman, MARTIN, VANN, CULLEN, and WERNER,
William A. Ferguson, and Charles W. Šinpott, JJ., concur.
for Edwin W. Fiske. Roger M. Sherman, for
Edward F. Brush.

PER CURIAM. Order (76 N. Y. Supp. CLARK, Respondent, V. BIRD, Appellant
1010) affirmed, without costs.

(Court of Appeals of New York. June 27,
PARKER, C. J., and GRAY, O'BRIEN,

1902.) Motion to dismiss an appeal from a
HAIGHT, VANN, CULLEN, and WERNER,

judgment of the appellate division of the su-
JJ., concur.

preme court in the Fourth judicial department,
entered November 20, 1901, affirming a judg.
ment in favor of plaintiff entered upon a deci-

sion of the court on trial at an equity term.
In re BRUSH. (Court of Appeals of New The motion was made on the grounds that no
York. June 27, 1902.) Roger M. Sherman, questions of law were involved in the appeal
for appellant. William N. Dykman, William and that the judgment was not appealable to the
A. Ferguson, and Charles W. Sinnott, for re court of appeals. Frank J. Hone, for the mo-
spondents.

tion. W. A. Sutherland, opposed. No opinion.
PER CUTIAM. Order (74 App. Diy. 625, Motion granted, and appeal dismissed, with
77 N. Y. Supp. 1122) affirmed, with costs.

costs. See 66 Ápp. Div. 284, 72 N. Y. Supp.

769.
PARKER, C. J., and O'BRIEN. BART.
LETT. MARTIN, VANN, CULLEN, and
WERNER, JJ., concur.

CONDE, Respondent, V. LEE, Appellant

(Court of Appeals of New York. May 29,
BUFFALO GERMAN INS. CO., Respond- 1902.). Charles S. Kent, for appellant. Frank
ent, v. THIRD NAT. BANK OF BUFFALO, Hopkins, for respondent.
Appellant. (Court of Appeals of New York. PER CURIAM. Judgment (55 App. Div. 401,
June 10, 1902.). George L. Lewis, for appellant. 67 N. Y. Supp. 157) affirmed, with costs.
Arthur W. Hickman, for respondent.

PARKER, C. S., and GRAY, O'BRIEN,
PER CURIAM. Judgment (61 App. Div. 612, BARTLETT, HAIGUT, MARTIN, and VANN,
69 N. Y. Supp. 1129) affirmed, with costs, on JJ., concur.

GRAY, O'BRIEN, HAIGHT, VANN, and
CROSS, Respondent, v. SECURITY TRUST | WERNER, JJ., concur. PARKER, C. J., and
& LIFE INS. CO., Appellant. (Court of Ap CULLEN, J., not voting.
peals of New York. June 10, 1902.) John W.
Brainsby and Vincent Rosemon, for appellant.
Charles M. Demond, for respondent.

DORNEY, Respondent, v. O'NEILL, Appel-
PER CURIAM. Judgment (58 App, Div. 602, lant. (Court of Appeals of New York. Oct. 7,
69 N. Y. Supp. 189) affirmed, with costs.

1902.) David B. Hill and Eugene Lamb Rich-
PARKER, O. J., and GRAY, HAIGHT,

ards, Jr., for appellant. Charles Steckler and
MARTIN, VANN, CULLEN, and WERNER,

Levin L. Brown, for respondent.
JJ., concur.

PER CURIAM. Judgment (60 App. Div. 19,
69 N. Y. Supp. 729) affirmed, with costs.

PARKER, C. J., and BARTLETT, MAR.
CUDLIP, Respondent, V. NEW YORK

TIN, VANN, CULLEN, and WERNER, JJ.,

concur. O'BRIEN, J., not voting.
EVENING JOURNAL PUB. CO., Appellant.
(Court of Appeals of New York. June 17,
1902.) Motion to dismiss an appeal from a

DUNICAN, Respondent, v. UNION RY. CO.
judgment of the appellate division of the su- 1 OF NEW YORK CITY, Appellant. (Court of
preme court in the First judicial department, ,| Appeals of New York. June 27, 1902.) Frank
entered A
. 1902 (70

| A. Irish, Charles F. Brown and Henry A. Rob-
Y. Supp. 1123), affirming a judgment in favor

inson, for appellant. William J. Martin and
of plaintiff, entered upon a verdict, and an or-

adent.
der den ving a motion for a new trial. The mo-

PER OURIAM. Judgment (56 App. Div. 181,
tion was made upon the ground that the court

67 N. Y. Supp. 619) affirmed, with costs.
of appeals had no jurisdiction to entertain the
appeal. Thomas P. Wickes, James Hillhouse,

PARKER, C. J., and GRAY, O'BRIEN,
and William H. Law, for the motion. Clarence

BARTLETT, MARTIN, VANN, and CUL-
J. Shearn, opposed. No opinion. Motion de

LEN, JJ., concur.
nied, with $10 costs.

In re EDISON ELECTRIC ILLUMINAT-
CULLINAN, State Excise Com'r, V. HAR.

ING CO, OF BROOKLYN. (Court of Appeals
LEY et al. (Court of Appeals of New York.

of New York. June 24, 1902.) Frank Harvey
May 29, 1902.) Louis Marshall, for appellant.

Field and Edward M. Shepard, for appellant.
William Vanamee, for respondent.

George L. Rives, Corp. Counsel (James McKeen,
PER QURIAM. Judgment (65 App. Div. 614,

of counsel), for respondents.
73 N. Y. Supp. 1140) affirmed, with costs.

PER CURIAM. Order (72 App. Div. 632, 76

N. Y. Supp. 1013) affirmed, with costs.
PARKER, C. J., and GRAY, O'BRIEN,
BARTLETT, HAIGHT. MARTIN, and 1 PARKER, C. J., and GRAY, HAIGHT,
VANN, JJ., concur.

VANN, and WERNER, JJ., concur. O'BRIEN
and CULLEN, JJ., dissent.

lon

DEERING v. SCHREYER et al. (Court of
Appeals of New York. June 27, 1902.) Motion

FALK et al., Respondents, V. AMERICAN
for reargument denied, with $10 costs. See 171

| WEST INDIES TRADING CO., Appellant.
N. Y. 451, 64 N. E. 179.

(Court of Appeals of New York. June 18,
1902.) Motion to dismiss an appeal from a
judgment entered May 6, 1902 (71 App. Div.

320, 75 N. Y. Supp. 964), upon an order of the
DEUTERMAN et al., Appellants, V. POL appellate division of the supreme court in the
LOCK et al., Respondents. (Court of Appeals First judicial department, affirming an inter-
of New York. Oct. 7, 1902.) Eugene Frayer, locutory judgment in favor of plaintiffs entered
for appellants. Wilson Brown, Jr., for re upon a decision of the court on trial at special
spondents.

term. The motion was made upon the grounds
PER CURIAM. Judgment (54 App. Div. that the record presents no question for review
575, 66 N. Y. Supp. 1009) affirmed, with costs. by the court of appeals and that the judgment
PARKER, C. J., and GRAY, O'BRIEN,

and order are not appealable. Morris S. Wise,
MARTIN, VANN, CULLEN, and WERNER,

for the motion. Isaac M. Aron, opposed. No
JJ., concur.

opinion. Motion granted, and appeal dismissed,
with costs and $10 costs of motion.

DIMON, Respondent, v. NEW YORK CENT, FOGERTY, Appellant, v. UNION RY. CO.
& H. R. R. CÔ. et al., Appellants. (Court of | OF NEW YORK CITY, Respondent. (Court
Appeals of New York. Oct. 14, 1902.) Motion of Appeals of New York. June 10, 1902.)
to dismiss an appeal from a judgment of the Archibald O. Shenstone and William E. Stil-
appellate division of the supreme court in the lings, for appellant. T. H. Lord, Charles F.
Second judicial department, entered June 23, Brown, Henry Melville, and Henry A. Robin-
1902 (74 App. Div. 626, 77 N. Y. Supp. 1125),

son, for respondent.
affirming a judgment in favor of plaintiff en-

PER CURIAM. Judgment (56 App. Div.
tered upon a verdict and order denying a motion

624, 67 N. Y. Supp. 1133) affirmed, with costs.
for a new trial. The motion was made upon

PARKER, C. J., and GRAY, HAIGHT, and
the ground that the exceptions appearing in the
record were frivolous and without merit. J.

| WERNER, JJ., concur. MARTIN, VANN
Addison Young, for the motion. John F. Bren-

| and CULLEN, JJ., not voting.
nan, opposed. No opinion, Motion denied, with
$10 costs.

FOGERTY, Appellant, v. UNION RY. CO.
OF NEW YORK CITY, Respondent. (Court of

Appeals of New York. Oct. 14, 1902.) No
In re DOHENY et al. (Court of Appeals of

opinion. Motion for reargument denied, with
New York. June 27, 1902.) Alexander H.

$10 costs. See 171 N. Y. 670, supra.
Cowie, for appellants. A. D. Jenney, for re-
spondents.

PER CURIAM. Order (70 App. Div, 370, FRANCIS v. WATKINS et al. (Court of
75 N. Y. Supp. 24) affirmed, with costs.

| Appeals of New York. June 24, 1902.) Louis